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Legal Features

Civil Jury Trials Define Democracy

By William Ledbetter
From the Freelance Star

JUDGE: Ladies and gentlemen of the jury, have you reached a verdict?

JURY FOREPERSON: We have, Your Honor.

JUDGE: Bailiff, please take the verdict and hand it to the clerk. Clerk, please read the verdict.

CLERK: "We, the jury, on the issue joined, find in favor of the..."

JUDGE: Jurors, is this your verdict, so say you all?

JURORS: It is.

JUDGE: The court accepts your verdict and thanks you for your services in the trial of this case. You have performed a valuable duty to the court and your community. You are now discharged and free to go.

This scene is played out daily not only on "Boston Legal" and "Law and Order" but also in thousands of real courtrooms across America as jurors, after hearing the evidence and deliberating privately, return verdicts that put an end to disputes.

The Framers of the Constitution considered trial by jury of such importance that they memorialized it in the nation's organic law.

During the 1787 debate over the Constitution, the absence of a provision for civil jury trials was noticed. One newspaper column "observed upon the excellency and importance of the jury trial in civil as well as criminal cases" and referred to the jury trial as "a solid uniform feature of a free government."

James Madison, the primary author of the Constitution, assured his opponents that if the Constitution were ratified, he would see to it that an enumeration of fundamental rights and liberties, including the right to trial by jury in civil cases, would be added at the first session of Congress.

True to his word, Madison drafted a Bill of Rights that in 1791 became the first 10 amendments to the Constitution. The Seventh Amendment provides that "in suits at common law the right to trial by jury shall be preserved."

Madison modeled his version after Declaration XI of the Virginia Declaration of Rights, written by Madison's mentor, George Mason, and adopted as part of Virginia's state constitution in 1776. Mason provided that "in controversies respecting property and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred."


Why did our forefathers have such affection for juries in civil disputes? In a nutshell, because they felt that the jury is the essence of democracy: decision-making in the hands of the people, not the sole province of officialdom.

The origin of trial by jury is obscured by the mists of time. Its roots seem to be in an administrative procedure used by Norman dukes to gather information by summoning landowners to give testimony about things such as ancestry, occupancy of land and the like. This device was transported to England with the Norman Conquest in 1066. There, it became available to private litigants, so that men not only were summoned to give general information to government officials but also were summoned to judicial proceedings to give a verdict between two private disputants.

Henry II, great-grandson of William the Conqueror and one of the greatest of all legal reformers, guaranteed trial by jury to his subjects in the Constitution of Clarendon in 1164. His son, John I, bailed himself out of trouble with his barons in 1215 by reassuring his realm of the right to trial by jury in the Magna Carta.

These ancient assurances were inadequate to the American revolutionaries because, in the Colonies, the king's judges often breached them. Thus, in the Declaration of Independence, Thomas Jefferson mentioned, among other grievances, that the king was "depriving us of the benefit of trial by jury."

Today, the right to trial by jury is preserved in federal and state court systems throughout the country, essentially as it existed under the common law of England.

The fact that civil disputes are more often decided by a judge sitting without a jury because the parties waive their rights to a jury, or by private arbitration process, or by a professional, hired mediator, does not detract from the importance of our preservation of this basic right.


Under the rubric "tort reform," some suggest that the civil jury is irrelevant to modern society because issues that confront us are more complex, and that it should be replaced with panels of experts.

Such proposals are the product of too much attention to aberrational, off-the-chart jury decisions - decisions that are almost always overturned or significantly modified by the trial judge or an appellate court.

This is not to say that all calls for tort reform are misplaced. Many have merit, or at least warrant careful consideration. But to abolish or severely revise the fundamental right of all citizens to have their disputes, in most types of cases, decided by fellow citizens selected at random from the community and sworn to be fair and impartial, would involve a major shift in our notions of the basic institutions of a free and orderly society.

In our system, the jury trial is not only important to the litigants but also to the public at large.

Author-journalist Anna Quindlen, after responding to a summons for jury duty, wrote in Newsweek about her experience. She observed that people who serve on juries "feel enlarged, even ennobled, by what they have done."

Despite its shortcomings and the inconveniences it causes, she said, "service on a jury still has the power to elevate the ordinary citizen."

Through jury service, a person learns to be "thoughtful, intelligent, empathetic and fair."

Alex de Tocqueville, a French author and social critic, visited America in the first part of the 19th century and made enduring comments about the workings of the great American democratic experiment. Observing the judicial system, he wrote:

"Thus the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching (the people) how to rule well."

James Madison could not have said it better.

Ledbetter is a retired Circuit Court judge in Virginia.


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