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Changing Roles of Jury and Judge

 

Jury

One of the most important consequences of the increased instrumentalism of U.S. law "was the dramatic shift in the relationship between judge and jury that began to emerge at the end of the eighteenth century." 4 Until that time the jury had exercised power over questions of law as well as fact. Today, these responsibilities are divided, with the judge treating matters of law and the jury left to decide on issues of fact. The judge, once the trial ends, instructs the jurors on the relevant points of law, and his or her instructions are considered binding. In the eighteenth century, the lines of authority ran in a different way. "The jury may in all cases," wrote William Wyche in his 1794 treatise on New York practice, "where law and fact are blended together, take upon themselves the knowledge of the law." 5 Jury instructions, which are highly regularized today, tended in the early years of the republic to be informal and nontechnical.

The typical eighteenth-century jury was free to accept the judge's instructions uncritically, modify them, or even reject them. While in theory the jury had to accept the law as given, in reality it often did as it pleased, because the jury's secret deliberation was beyond the court's immediate oversight. In the famous case of John Peter Zenger, a printer accused of libeling the governor of the colony of New York in 1735, the trial judge ordered the jury to disregard the law as argued to it by Zenger's counsel. The jury, however, took its own view of the law, which matched that of Zenger, and ruled for the printer. The jury gave a "general verdict," which reflected its evaluation of the validity of the facts and the law.

Through the nineteenth century the division of labor between judge and jury sharpened. The jury had historically functioned as an appendage of the community, and even though qualifications of race, sex, and property holding made it an unrepresentative body, it was still a democratic force. Americans intended to keep it that way by limiting direct judicial influence. States, for example, began passing statutes that restricted judges in commenting on the evidence. A North Carolina statute of 1796 made it unlawful, "in delivering a charge to the . . . jury to give an opinion whether a fact is fully or sufficiently proved," because that was "the true office and province of the jury." 6

The autonomy gained by the jury over matters of fact was lost over questions of law. This development was much more pronounced in civil than in criminal cases, but even in the latter there was concern that jury discretion would promote injustice. Because criminal proceedings always held the potential to deny a person's liberty or life, the ideal of uniform application of the law was at war with the belief that the jury should impose the community's understanding of guilt or innocence based on fact instead of law. Some states, such as New Jersey in 1844, went so far as to write into their constitutions provisions that required juries to be judges of fact and law "in prosecutions or indictments for libel." 7



In civil cases the jury became a finder of fact in the service of the court. Nineteenth-century trial courts adopted several procedural devices that limited the scope of jury autonomy. The growth of a commercial market economy made order and stability necessary in jury verdicts. Writers on law and counsel for commercial interests con

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cluded that greater judicial control over the law in a case would produce the kind of stable legal climate in which business would flourish. Moreover, as the nature of law practice shifted from the settlement of disputes over land to issues of commercial law, the rising American legal profession, from whose ranks judges were almost exclusively drawn, concluded that a uniform system of commercial law complemented their personal and professional ambitions.

Commercial lawyers in the United States, for example, began in the late eighteenth century to expand the "special case" or "case reserved." This device allowed them to submit points of law to the judge while avoiding the jury's intervention. The special case involved obtaining from a judge a decision on a point of law based on a mutually agreed statement of facts. English and Scottish judges had permitted extensive use of the special case in marine insurance cases, and commercial lawyers in the United States seized on its advantages. 8 The special case permitted counsel, upon receiving a judgment from the court on the legal issues, to settle the dispute out of court without exposing his clients to an uncertain jury deliberation.

Another major procedural reform was the award of a new trial for verdicts "contrary to the weight of the evidence." This device enabled judges to second-guess the jury's verdict, and before the late eighteenth century it was hardly known in American law. With independence and a coequal status with the other branches, the judiciary began to reconsider jury verdicts, especially in cases where the evidence was often complicated. Not only did judges order new trials, but in doing so they impinged on the jury's supposedly exclusive fact-finding role. In New York and South Carolina, for example, the practice of granting new trials based on a judge's weighing of the evidence was well established by the early nineteenth century.

Judges, of course, never brought juries wholly under control; jury discretion remained then, as now, an important democratic feature of the American legal system. Yet the trend was clear: this development made it possible for "American courts after 1790 [to] overthrow particular anticommercial doctrines of the eighteenth century." 9

 

Judiciary

The judiciary also extended its influence over legislative policies, although judges continued to respect legislative authority. The immediate postrevolutionary view held that judges exercised judicial review as agents of the rule of law rather than popular will. The measure of their integrity was the extent to which they fulfilled this role through the mechanical application of precedent. Judges had discretion, of course, but constitutions and precedents (higher law and history) were palpable limits on that discretion. Judges were legal and not political actors.

By the mid- 1830s, however, some lawyers and judges began to advocate a new conception of judicial power that altered this traditional dichotomy between law and politics. Courts, they insisted, should become active participants in resolving conflict among social interests. Francis Hilliard and William Duane, two of the nation's most prominent lawyers, insisted that judges had an overtly political as well as judicial character. In 1831 a writer in the American Jurist, one of the nation's first law journals, proclaimed that law was "essentially variable, extending and contracting itself according to the condition of the nation, accommodating its flexible character to the manners, habits and employments of the people." 10 The new basis of law, accord

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ing to Hilliard, was "generally expediency, public policy"; judges made law, as opposed to merely finding it, because they were often "governed by ideas of political expediency." 11 Judicial review, the Pennsylvania Supreme Court added in 1830, equipped judges with a "latitudinarian authority" that was "great and . . . undefined." 12

Although the incidence of judicial review by state and federal appellate courts increased most dramatically after the Civil War, its exercise by antebellum judges nonetheless fortified their growing role as economic policy makers. In the case of the federal judiciary, and especially the Supreme Court, judicial review also swept away state impediments to the emerging national market economy.

 


Date: 2015-01-29; view: 895


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