Legal Scenarios

Juries, Then and Now


“The jury is always right.”

It’s an expression I often find myself saying to my associates as we prepare for trial. Many of my trials involve intellectual property rights; in turn, these often depend on complex factual issues, like how an automobile cooling system works, or how hardware and software combine to regulate the operation of aircraft engines. Invariably, as we prepare to present these issues to a jury, one of my less experienced colleagues will worry about how the average lay people on the jury will possibly understand the complex engineering involved.

The answer, in short: if they don’t, it’s our fault, not theirs. A skilled advocate should be able to present any issue, even an enormously complex one, in terms an average lay person can understand. Indeed, you can make a good argument that the ability to do so effectively – not to talk down or up to the decision-maker, be it a jury, judge or arbitrator, but to meet them exactly where they are – is the core skill of a trial lawyer. If we fail to do so, and the jury finds against our client, it doesn’t make sense to complain that the jury got the facts wrong. Invariably, juries do the best they can with the information presented to them by the trial lawyers. The jury, as I say, is always right.

I’ve been asked by some Sidebar Saturdays readers how juries fit into a court case, both in real life and in fiction. I’m going to try to address those questions here, with the added perspective of historical research I conducted about juries for my recent historical novel.

The jury is a landmark feature of the U.S. justice system, guaranteed by the Constitution – the Sixth Amendment (for criminal cases) and Seventh Amendment (for civil cases). Many other countries use specialist judges to resolve complex factual issues. As with most aspects of our legal system, we owe the right to a jury to our inheritance of the common law traditions of England, where the right of a person to “the lawful judgment of his peers” was first guaranteed by King John in the Magna Carta of 1215.

My recently published debut novel, These Honored Dead, is a historical legal mystery story set in 1837 on the American frontier of Springfield, Illinois, and starring the young Abraham Lincoln. At the heart of the story is Lincoln’s first-ever murder trial. While the facts of the mystery are my invention, inspired by actual cases Lincoln handled in his long and varied legal career, I wanted to make sure that the trial was historically accurate. Thus, I ended up learning a lot about the Illinois court procedure of 1837 in the course of researching and writing my novel.

The trial in These Honored Dead, like virtually every criminal trial in any American jurisdiction, then or now, begins with jury selection. I was interested to learn of the similarities and differences between the procedure followed in 1837 and the way things work today.

One stark difference is the composition of the jury. Today, any adult citizen is eligible for jury service and is expected to serve when called. By contrast, in 1837 Illinois, only free, white, male citizens who were between the ages of twenty-one and sixty and owned property could serve as jurors.

Another big difference is how the jury pool – the group of persons considered for potential service on a given jury – is assembled. Today, most jurisdictions use complex databases that randomly send out jury notices to all eligible persons, in an attempt to guarantee that the privilege (and burden) of jury service is distributed more or less evenly across the population.

In 1830s Illinois, the process was much more haphazard. The court clerk was responsible for drawing up by hand a list of several dozen members of the community who were available for any given court session. If the clerk’s efforts fell short, as they often did – then, as now, potential jurors tended to do everything they could to get out of jury service – it was not uncommon for the judge to send the sheriff out onto the village green with instructions to physically detain and march into the courtroom potential jurors who had the misfortune to pass by.

But once the jury pool was assembled, the selection process in 1837 was virtually identical to that used today. The judge and the attorneys would question the members of the jury pool about potential biases, such as familiarity with the parties to the case or any personal interest in its outcome. Would-be jurors who did have a potential stake in the case would be struck from the panel for cause. In addition, each side was given a number of “peremptory” challenges to use to strike off potential jurors who did not have a personal interest in the case but who the attorney for one side nonetheless believed might find against their client.

In criminal cases in 1830s Illinois, a defendant facing a possible death sentence was entitled to use up to twenty peremptory challenges, while a defendant facing a lesser sanction would get ten (for charges that could lead to a prison term of more than 18 months) or six peremptory challenges. In each situation, the prosecutor was entitled to half the number of challenges to which the defendant was entitled. In the federal courts today, Rule 24 contains almost exactly the same provisions: twenty peremptory challenges for a defendant facing the death penalty; ten challenges for a defendant facing imprisonment of more than a year; and three challenges for all others.

For the writer, the most relevant question may be whether jury selection makes for good reading. In real life, both in Lincoln’s time and today, jury selection can occupy a surprisingly long period relative to the length of the trial itself. In one highly publicized murder trial handled by Lincoln in 1838, jury selection stretched over three days, after which all of the evidence was presented in a single day. Similarly, in modern-day New York State civil cases, where jury selection typically happens outside the presence of a judge, it’s not unusual for the selection process to take as long as the evidence itself, as the lawyers argue their case back and forth under the guise of examining the fitness of would-be jurors.

Is that a good use of time? Clearly the lawyers think so. But is it a good use of pages? Only you can answer that. As for me, I can report that jury selection in These Honored Dead comprises less than two pages of the 300-page novel.


Photo Credit: The Jury by John Morgan via VisualHunt.com / CC BY-NC-ND

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