James Oldham Comments on Trial by Jury: The Seventh Amendment and Anglo-American Special Juries (NYU Press 2006)
Here are a few paragraphs about my recently-published book:
Trial by jury in the United States, however controversial in application, remains a treasured part of most citizens’ concept of liberty. Everyone is familiar with the safeguards that trial by jury supplies to criminal defendants. Nearly everyone knows that the right to a jury trial also applies to civil cases, although it can be waived. The source of the right in civil cases in federal courts is the Seventh Amendment, and in state courts the right is preserved by comparable provisions of state constitutions.
The Seventh Amendment provides that in suits at common law involving more than twenty dollars, the right to jury trial shall be preserved. This seems simple and straightforward, but what does it mean? What right to jury trial? What did the framers have in mind by their simple formulation?
Unavoidably, it fell to the Supreme Court to fashion a test that could be used to measure the scope of the protection embodied in the Seventh Amendment, or in state imitations. The Court did so in 1812 in the case of United States v. Wonson, in which Justice Story wrote: “Beyond all question, the common law here alluded to [in the Seventh Amendment] is not the common law of any individual state, (for it probably differs in all), but it is the common law of England, the grand reservoir of all our jurisprudence.”
The rule thus fashioned by the Supreme Court came to be called “the historical test.” A commonly-quoted, succinct version of the test is the following 1935 formulation in the case of Dimick v. Scheidt: “In order to ascertain the scope and meaning of the Seventh Amendment, resort must be had to the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791.” This test survives to the present day, despite unrelenting criticism, mainly from legal academics.
In the past decade, the Supreme Court had several opportunities to revisit the historical test for the scope of the Seventh Amendment right to jury trial. In 1996 in Markman v. Westview Instruments, Inc., the Court emphatically declined the opportunity, unanimously reaffirming the historical test. In Trial by Jury, I do not try to revisit the argument that the Court should discard the historical test; rather, I take that test as a given and then measure its scope by examining actual trial practices in England in the late 18th century, especially as revealed by archival sources. This leads me to conclude that the Court in Markman improperly withdrew the construction of patent claims from the jury. Yet at the same time, I claim that a complexity exception to the Seventh Amendment guarantee would be legitimate under the historical test.
Other matters addressed in Trial by Jury include the question of law versus fact, jury nullification, and the jury’s role in determining damages, both compensatory and punitive. Also, I explore how substantially jury trial in the United States has been influenced by a 20th-century development, the “reasonable cross-section” rule. Whenever this rule applies (and its applications are by now sweeping), the jury pool is required to reflect a reasonable cross-section of the community from which the jurors are drawn. This development is ahistorical, since historically juries were frequently made up of jurors with special qualifications. One prominent example was the jury of merchants, used extensively in commercial cases in the late 18th and 19th centuries. (A variation of this type of jury is still possible in Delaware in complex civil cases.)
Another example was the all-woman jury (jury of matrons) that was relied upon for centuries to determine whether or not a female litigant was pregnant, or more precisely, whether she was “with quick child.” Usually this happened when a female defendant had been convicted of a capital offense, and she “pleaded her belly” to escape the noose. In the English experience, if a jury of matrons found such a female defendant to be pregnant, it was often possible for the woman to obtain a pardon, conditional on transportation for life to the colonies. Thus in Daniel Dedfoe’s famous novel, Moll Flanders (1722), this is how it came about that Moll was born in Virginia. The jury of matrons can be viewed as a true example of a “jury of peers.”
The “jury of peers” notion has an ancient lineage that still reverberates as a supposedly important part of every American’s heritage. An opinion in 1996 of the United States District Court for the Eastern District of Pennsylvania (In re. Tiffany Green) illustrates the modern, nostalgic perception of this heritage. Judge Hutton wrote that, “The right to a trial by a jury of one’s peers is one of the cornerstones of the American judicial system. It is a birthright cherished by generations of American citizens.” Similarly, the Supreme Court in Duncan v. Louisiana (1968) observed that, “Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt, or overzealous prosecutor and against the compliant, biased, or eccentric judge.”
Who were the “peers” in the so-called “jury of peers”? According to Henry Toulmin, United States Judge for the Mississippi Territory and author of an 1807 book called The Magistrate’s Assistant, “The fundamental principle of this institution [trial by jury] is, that a man should be tried by his peers or equals, a commoner by commoners and a nobleman by nobles.” This proposition, however, is, and for the most part always has been, a fairy tale. Historically, we boasted about juries of our peers while excluding half the population--women--from any jury service other than the rare, single-purpose jury of matrons. We also followed practices that kept racial and other minorities off juries or that left them drastically under represented. In the not so distant past, the United States also maintained requirements of property ownership that excluded the poorest segments of the economic spectrum of society.
Both the jury of peers concept and the reasonable cross-section requirement relate to jury composition procedures. They do so, however, with sharply different objectives. As Judge Toulmin suggested, the jury of peers notion is aimed at giving the defendant a fair trial by placing on his jury at least a representative number of people that share the defendant’s cultural, linguistic, ethnic, or possibly socioeconomic circumstances. The reasonable cross-section requirement, by contrast, is designed to ensure that members of all significant, or “cognizable,” segments of the community have the opportunity to be jurors. This egalitarian requirement pulls strongly against any procedure or tradition that would permit the formation of juries from lists of persons with special qualifications.
The idea of drawing exclusive special juries from specialized lists seems to be anachronistic today. Elite special juries surely are antithetical to the hard-fought, long-delayed goal of opening up jury service to everyone. Having eliminated the unsavory exclusions of the past, how can there remain a place in modern American society for an exclusive special jury?
I argue that there is still such a place--that our history justifies continued experimentation with jury composition, including the special jury. However desirable the reasonable cross-section requirement is as a means of keeping an increasingly stratified people personally involved in the business of democracy, the requirement contributes little or nothing to other goals, such as coping effectively with jury trial of complex cases, or striving for fairness to litigating parties.