I. Introduction
The right to a trial by a jury of one’s peers is a cornerstone of American democracy. Along with voting, it’s
one of the main ways people take part in the public life
of this nation. By entrusting jurors from the community to decide legal cases—some of them involving
millions of dollars or life-and-death issues—we
reinforce our belief that everyday people can make
the right decision, and that we are an open, democratic
government.
By giving ordinary people a central role in the
justice system, we also put a human face on the law.
The law might be made from afar, but each jury applies
it locally. Instead of law interpreted and enforced by
professionals and bureaucrats, we have law administered by the people.
As the French statesman Alexis de Tocqueville noted
in his travels through 19th-century America, not only
does the institution of the jury help improve the law,
it helps improve the jurors too. It educates them about
law and the legal process and helps them understand
their duties as citizens. In de Tocqueville’s words, jury
service “rubs off that private selfishness which is the
rust of society.”
As countries move toward democratic forms of
government, they often embrace the jury system as
part of their new commitment to democracy. Spain,
Russia, and Japan are all examples of countries that
relatively recently added juries to their legal systems.
Yet the jury system is often the focus of controversy
today. Some commentators claim that it is unsuited for
complex matters and that justice is better served in
many cases by other means of resolving disputes.
This booklet will briefly look at some of the historical
background of juries, turn to how juries function today,
and conclude by looking at some of the reforms that
may help them work better.
II. The Roots of the Jury System
In English law, the jury may have had its origins in the
Anglo-Saxon courts, where a person who was accused of
a crime was permitted to bring in a number of friends,
Juries | 3
Bushell’s Case
Bushell’s case shows both
the extreme pressures once
put on juries and the evolution of jurors’ rights. Edward
Bushell was jury foreman in
the trial of William Penn and
William Mean. When the
jury refused to convict, the
judge ordered them back
into deliberations and fined
them heavily. When they
again refused to convict, he
threatened to have Bushell’s
nose cut off and said the
jury would be “locked up
without meat, drink, fire,
and tobacco…. We will have
a verdict, or … you shall
starve for it.”
Bushell spent several
weeks in prison. On appeal,
England’s chief justice
affirmed that a jury must be
free to speak its conscience
and cannot be fined for its
verdict.
4 | Law & the Courts
often 12, to swear to his honesty. These friends (called
compurgators) were neither witnesses nor jurors, in
that they did not have independent knowledge of the
facts, nor did they hear evidence. Rather, they merely
“put their oaths on the line.” Later, the Norman courts
in England brought residents of a county to court to
swear to proper land titles. In 1154, almost ninety years
after the Norman conquest, these bodies, called recognition panels, were given the power to decide property disputes between private parties. Eventually, this
power was extended to other kinds of disputes, even
criminal matters.
The earliest English juries were “self-informing”—
they were expected to come to trial with knowledge
of the matter in dispute. Indeed, the ability of jurors
to rely upon their private knowledge of the matter was
acknowledged as late as the seventeenth century. But
over the course of the later Middle Ages, and certainly
by 1500, jurors began to rely primarily upon evidence
presented in court as the basis for their decision.
Over the years, in a number of celebrated cases,
English juries protected the rights of defendants
against the might of the state. In the mid-1600s,
juries in several cases refused to convict celebrated
dissident John Lilburne of such crimes as treason and
sedition. Lilburne, a popular figure who fought for
greater liberty and equality, was prosecuted by several
regimes but often saved by sympathetic juries.
In 1670, courageous jurors refused to vote for conviction in an important case and ultimately won judicial
recognition of the rights of jurors. In this case, eminent
Quakers William Penn and William Mean were accused
of illegally preaching in the streets. When the jury
deadlocked over the charge, court officials seized those
favoring acquittal and held them without food and
water. But one of the jurors, a man named Bushell, took
the matter back to court and won a ruling that jurors
could no longer be punished for their verdicts. This was
a landmark in the evolution of the independent jury.
The jury system came to the English colonies with
the first settlers. In these early days, the jury was the
most representative arm of government. In many
states, a landed aristocracy controlled the legislature,
the clergy, the military, and other societal institutions,
but juries were made up of common people, and almost
all citizens had experience as jurors.
As Valerie Hans and Neil Vidmar explain in Judging
the Jury, in colonial America the jury became a
vehicle for the colonists to assert new ideas and principles, particularly in cases of conflict with the king
of England. For example, in 1734, several grand juries
refused to follow the wishes of the royal governor of
New York. The governor, newly appointed and already
under fire for unpopular decisions, had sought to indict
John Peter Zenger, a newspaper printer, on charges
of seditious libel for publishing articles critical of the
government.
When charges against Zenger were brought the next
year by the attorney general, the trial jury was asked
only to determine an issue of fact—whether Zenger had
actually printed the newspaper in question. According
to the instructions of a judge sympathetic to the king,
under English law the content of the articles would
be sufficient to prove him guilty of sedition. Andrew
Hamilton, a distinguished Philadelphia lawyer who
had traveled to New York to appear on Zenger’s behalf,
had a very different view of the jury’s role. He argued
that the issues in the case involved an “intertwining
of law and fact,” and urged an expanded role of the
jury: “Jurymen are to see with their own eyes, to hear
with their own ears, and to make use of their own
consciences and understandings, in judging the lives,
liberties, or estates of their fellow subjects.” He asked
that the jury acquit Zenger if they found that the statements he printed were not false.
The jury did acquit Zenger. This was a landmark in
the evolution of a free press, but it was also a first step
in the America’s long quest for freedom. Gouverneur
Morris later wrote, “The trial of Zenger in 1735 was the
germ of American freedom, the morning star of that
liberty which subsequently revolutionized America.”
In the following decades, the jury’s role and the way
juries were selected came to the forefront of public
discussion. Several states passed legislation dealing
Juries and the
Democratic Ideal
Many cultures seem to
have evolved systems that
relied on laypeople to make
decisions in legal cases.
Stephen J. Adler’s book, The
Jury, briefly looks at some
of them. In Athens in the
fifth century B.C., a majority
of a jury of 501 citizens
could determine both the
outcome of a case and the
sentence. (This suggests the
democratic origins of juries,
since the system is analogous to the political system
in Athens, where citizens
made law directly.) Roman
law featured smaller juries.
In the Middle Ages, community courts in Germany and
the Scandinavian countries
had citizen judges.
Juries | 5
A Cross Section of the
Community
The U.S. Supreme Court has
played an important role
in making the jury truly fair
and truly representative,
by outlawing the exclusion
of nonwhites, and later
women, from jury lists. In
Strauder v. West Virginia, 100
U.S. 303 (1879), the Court
struck down a West Virginia
law limiting jury service to
“all white male persons,”
as a violation of the equal
protection guarantee of the
Fourteenth Amendment. In
Taylor v. Louisiana, 419 U.S.
522 (1975), the Court found
“affirmative registration” for
women for jury service, in
which they were not automatically included on jury
lists unless they registered,
to be a violation of the Sixth
Amendment guarantee of
a jury drawn from a cross
section of the community.
6 | Law & the Courts
with jury selection in order to thwart British attempts
to stack juries with those sympathetic to the king.
The Crown dispensed with trial by jury for colonists
accused of violating the hated Stamp and Navigation
Acts. In response, the Declaration of Independence,
listing grievances against King George III, castigated
him for “depriving us, in many Cases, of the Benefits of
Trial by Jury.”
After the Revolutionary War, juries were seen as
having even greater importance. Thomas Jefferson
wrote that “trial by juries impartially selected” was the
best of all safeguards of liberty and property.
III. Juries in the Constitution
The basics of public participation in the federal justice
system are set out in the United States Constitution.
Article III specifies: “The trial of all Crimes, except on
Cases of Impeachment[,] shall be by Jury.” The Fifth
Amendment specifies that no person “shall be held
to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury.”
The Sixth Amendment says that “in all criminal prosecution, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury…” The Seventh
Amendment extended the right of trial by jury to civil
suits. In 1868, these guarantees were made applicable
to state courts by the Fourteenth Amendment.
The references to juries in the Declaration of Independence and the Constitution strongly suggest that
the Founders—who had experienced the arbitrary
and capricious use of power—saw juries as a safeguard against the power of government to suppress
liberty. America was founded on the principle that the
people would have the decisive voice in administering
justice—in determining who would be brought to court
on criminal charges, who would be convicted, and who
would prevail in civil disputes.
Today, the right to trial by jury is protected by the
federal Constitution and the constitutions of every
state.