Trial by Jury

Trial by Jury: The Seventh Amendment and Anglo-American Special Juries

James Oldham
Copyright Date: 2006
Published by: NYU Press
Pages: 355
https://www.jstor.org/stable/j.ctt155jkr0
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  • Book Info
    Trial by Jury
    Book Description:

    While the right to be judged by one's peers in a court of law appears to be a hallmark of American law, protected in civil cases by the Seventh Amendment to the Constitution, the civil jury is actually an import from England. Legal historian James Oldham assembles a mix of his signature essays and new work on the history of jury trial, tracing how trial by jury was transplanted to America and preserved in the Constitution.

    Trial by Jurybegins with a rigorous examination of English civil jury practices in the late eighteenth century, including how judges determined one's right to trial by jury and who composed the jury. Oldham then considers the extensive historical use of a variety of "special juries," such as juries of merchants for commercial cases and juries of women for claims of pregnancy. Special juries were used for centuries in both English and American law, although they are now considered antithetical to the idea that American juries should be drawn from jury pools that reflect reasonable cross-sections of their communities. An introductory overview addresses the relevance of Anglo-American legal tradition and history in understanding America's modern jury system.

    eISBN: 978-0-8147-6259-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-x)
  4. Introduction
    (pp. 1-4)

    This book explores the colorful and varied history of trial by jury as established in England, transplanted to America, and preserved in the U.S. Constitution. Special attention is given to the scope of the Seventh Amendment guarantee of trial by jury and to the emergence and spread of the philosophy that juries must be formed from a jury pool that reflects a reasonable cross-section of the local population. That philosophy is compared to, and contrasted with, past experience in the history of trial by jury that featured juries of experts, such as juries of merchants in commercial cases and juries...

  5. 1 The Scope of the Seventh Amendment Guarantee
    (pp. 5-16)

    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...

  6. 2 The “Complexity Exception”
    (pp. 17-24)

    In the 1995 decision of the Federal Circuit inMarkman v. Westview Instruments, Inc.,Judge Mayer declared in his opinion concurring in the judgment: “Today’s decision . . . threatens to do indirectly what we have declined to do directly, that is, create a ‘complexity exception’ to the Seventh Amendment for patent cases.”¹ Judge Mayer’s remark relates to a larger debate in Seventh Amendment cases, inspired by a footnote in a 1970 Supreme Court decision,Ross v. Bernhard,² a shareholder derivative suit in which the Court held that the shareholder plaintiffs did have a right to a jury trial. Ross...

  7. 3 Law versus Fact
    (pp. 25-44)

    Three questions are examined in this chapter: first, when, if ever, does the jury have the right to decide the law as well as the facts, in which case there would be no need to worry about the law-fact distinction?; second, if the jury is to be limited to facts but the jury reaches a wrong verdict, what can the court do about it?; and third, what is “fact,” and how stationary over time has the law-fact boundary been?

    InDimick v. Schiedt,¹ the Supreme Court stated the following familiar proposition: “The controlling distinction between the power of the court...

  8. 4 Determining Damages: The Seventh Amendment, the Writ of Inquiry, and Punitive Awards
    (pp. 45-79)

    This chapter explores whether determinations of damages are invariably “findings of fact” that fall within the province of the jury under the jury-trial guarantee of the Seventh Amendment. The chapter revolves around two recent Supreme Court decisions—City of Monterey v. Del Monte Dunes at Monterey, Ltd.,¹ andCooper Industries, Inc. v. Leatherman Tool Group, Inc.² InCity of Monterey,an action brought in federal court under 42 U.S.C. § 1983, Justice David Souter observed that, in determining damages, “the dollars-and-cents issue is about as ‘factual’ as one can be.”³ And inCooper,the Court declared that a “jury’s award...

  9. 5 The Jury of Matrons
    (pp. 80-114)

    It is well known that until the twentieth century, regular jury service in both England and America was exclusively a male preserve.² Not so well known is that, for at least seven centuries in England, and also in colonial America, women served on exclusively female special-purpose juries. The special purpose was to determine whether a female party to litigation was pregnant—or, to use the quaint language of the jury charge, whether she was “quick with child of a quick child.”³ To provoke the inquiry, the female party to litigation would, again in the language of the day, “plead her...

  10. 6 The Self-Informing Jury
    (pp. 115-126)

    The expression “self-informing jury” customarily refers to juries formed in England from the twelfth to the sixteenth centuries under circumstances in which the jurors themselves would be the experts. They were expected to know or to find out the facts of the event or events in dispute and ordinarily would decide without the help of any documentary or testimonial evidence given in court. How pure this process was, even in the early centuries, is a matter of ongoing scholarly debate, but there is general agreement that the transformation to the modern understanding of the jury’s role (to decide based solely...

  11. 7 The English Origins of the Special Jury
    (pp. 127-152)

    During the eighteenth and nineteenth centuries, the special jury emerged in English common and statutory law as a familiar feature of the civil trial.² Ordinarily, the term “special jury” appeared in case reports and statutes without explanation or definition, suggesting that the concept was widely understood.³ As the Erskine quotation indicates, however, the origins of the special jury were not well understood as of the late eighteenth century, never having been subjected to careful historical study.⁴

    Close examination of the usage of the term “special jury” since its appearance in cases and legal literature during the second half of the...

  12. 8 Special Juries in England: Nineteenth-Century Usage and Reform
    (pp. 153-173)

    Special juries were used in the late eighteenth and nineteenth centuries in a surprisingly diverse array of courts and locations. Apart from the mainstream experience in the central courts in England, Scotland, and Ireland, the special jury appeared in other courts in England, in the farthest reaches of the British Empire, and in a number of American jurisdictions. Here is a sampler: the Court of the Sheriff of Middlesex;¹ Inquisition of Damages conducted by the Deputy Sheriff of Middlesex at the King’s Arm Tavern;² Her Majesty’s Court of Probate;³ the Liverpool Court of Passage;⁴ the Circuit Court at St. John,...

  13. 9 Special Juries in the United States and Modern Jury Formation Procedures
    (pp. 174-212)

    In this final chapter, I explore the history of the special jury in the United States and relate it to two fundamental features of the institution of trial by jury. The first is what every schoolchild learns: No one who claims to be innocent can be sentenced to jail unless found guilty of wrongdoing by a jury of his or her peers. The second is the requirement that the pool of potential jurors used by the courts must comprise, as nearly as possible, a reasonable cross-section of the community.¹ A requirement that a defendant’s trial jury should contain a representative...

  14. Appendix 1
    (pp. 213-216)
  15. Appendix 2
    (pp. 217-218)
  16. Appendix 3
    (pp. 219-219)
  17. Appendix 4
    (pp. 220-228)
  18. Notes
    (pp. 229-312)
  19. Table of Statutes
    (pp. 313-320)
  20. Table of Cases
    (pp. 321-332)
  21. Index
    (pp. 333-354)
  22. About the Author
    (pp. 355-356)