The Grand and Petit Jury

The grand and petit juries brought the force of community will to bear on the legal process. The criminal jury underwent significant changes, of which the most dramatic was the "increasing restriction placed on the jury's right to decide law." ¹⁷ This development paralleled a similar decline in the civil jury's law finding role.

A grand jury inquires into complaints and accusations brought before it and, based on evidence presented by the state, issues bills of indictment. It is called a "grand" jury because it involves a greater number of jurors (in common law no less than twelve and no more than twenty-three) than an ordinary trial or "petit" jury. The grand jury was originally conceived in English law as an institution in which jurors disclosed whatever personal knowledge they had of crime. Early in the history of the United States, the grand jury had evolved the somewhat different role of relying on the sense of the community to prevent indiscriminate prosecutions. The grand jury was also an administrative body that inquired into the condition of highways, taverns, and jail facilities. It was an investigatory body that checked corruption and laxness in local government at the same time that it posted indictments against members of the community for alleged criminal violations.

The grand jury was a source of controversy. Jeffersonian Republicans, for example, charged that Federalist judges used grand jury charges to further political objectives. Even Chancellor James Kent, the great conservative common law jurist of New York, believed that judges should restrict themselves in charging grand juries "to the business of the penal law." ¹⁸

The secrecy that surrounded grand jury proceedings fueled additional agitation, especially after the franchise democracy of the Jacksonian United States gained hold in the 1840s and 1850s. Several state constitutional conventions debated its fate, with critics charging that secret proceedings in criminal matters were contrary to the spirit of the new nation's democratic institutions. Defenders of the grand jury, who were overwhelmingly Whig, subscribed to the traditional republican notion of community control; opponents, who were overwhelmingly Democrats, argued that only through open proceedings was it possible to place responsibility for upholding the community's morality where it belonged--on the individual.

The grand jury weathered this onslaught because of the absence of a workable

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alternative. Democratic reformers, for example, urged that public examination replace the grand jury's secret deliberations. Antebellum lawmakers, however, concluded that, important as individual virtue and responsibility were, property, life, and personal reputation were better protected through the grand jury's institutionalized secrecy. The clamor indeed prompted some changes, the most important of which was the decision in most states to broaden the authority of prosecutors to bring an information (which was an accusation of wrongdoing) independent of the grand jury.

The petit jury also changed. Jeffersonian Republicans advocated an active and unchecked jury solidly anchored to democratic principles. Jacksonian Democrats in the 1830s and 1840s echoed this earlier belief that the trial jury was merely an instrument of popular justice. Alexis de Tocqueville explained as much when he wrote that "the jury is pre-eminently a political institution; it should be regarded as one form of the sovereignty of the people." ¹⁹ Yet lawmakers also recognized that freewheeling juries sapped one of the most valuable components of the rule of law: consistent and uniform decision making based on precedent.

Two issues structured the antebellum debate over the criminal jury. The first was its power to decide questions of law; the second was the method by which its members were selected. Prior to about 1800 a consensus existed that an unfettered jury served the interests of justice by linking the criminal law to community morality. Juries issued general verdicts that stated either the innocence or guilt of a defendant. John Adams, for example, concluded that general verdicts allowed a juror "to find the verdict according to his own best understanding, judgment, and conscience, tho in opposition to the direction of the court." ²⁰ Jurors did not operate totally at will, and the same limitations on jury discretion that appeared in early nineteenth-century civil proceedings also emerged in criminal trials. Counsel, for example, could use special pleading before a court, a technique that framed a factual question in such a way that jurors had either to answer yes or no, leaving the matter of law strictly to be settled by the presiding judge.

Nineteenth-century criminal trial judges gradually eroded the jury's dominance, although their actions generated substantial controversy. Legislators aided this shift through statutes that specified, for example, tighter rules for the admissibility of evidence. Uniformity in adjudication became more important than unrelieved democratic sentiment. Moreover, the declining influence of the jury flowed directly from the growing technical character of law over which judges, as the heads of the rising legal profession, exercised increasing command.

Because the jury was an instrument of popular control and an accepted feature of Anglo-American law was that every defendant deserved a trial before his peers, the issue of jury composition (i.e., how to select jurors) also stirred debate. We know tantalizingly little about this process of selection. Women and blacks, of course, because they were not considered part of the political community, were excluded. Most states relied on the tax roles to compose the venire (the pool of potential jurors), and widespread property holding probably made American juries more representative of the community on the whole than their English counterparts, where the sheriff had exercised great authority in composing them. Lawmakers provided that both the prosecution and the defense could exercise some number of challenges, either preemptorially (usually limited in number) or for cause (usually with no limit on the number, but with constraint by the judge).

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Throughout the nineteenth century, pressures for economy and efficiency in government narrowed the bases on which juries were composed. State legislatures, for example, passed laws that reduced the number of jurors needed to compose the venire and increased the number of challenges allowed by both sides. Even more important, this legislation permitted the use of "bystander jurors." If the venire was exhausted, then the clerk of the court could turn to bystanders. Clerks broadly interpreted the term bystander to include persons well beyond the confines of the courtroom. The practice, critics rightly charged, diminished the quality and representativeness of the jury. In Indiana, for example, bystander juries were composed of a class of "idle and dissolute persons" and "loafers and drunkards," who were predisposed to allow the guilty to escape and whose presence "destroy[ed] the good effect of jury trials, as well as impair[ed] public confidence and acquiescence in their decisions." ²¹

Date: 2015-01-29; view: 977