The Jury On Trial


Storey’s concern that verdicts often rest on flawed understanding or even on no understanding at all merely echoed an observation of John Adams’s in the 1770s, when litigation was infinitely less complicated. In some types of dispute, Adams said, a decision by the jurors “would be no better than a Decision by Lott.” At the end of the 1890s, Justice Oliver Wendell Holmes, while still on the Massachusetts Supreme Judicial Court, expressed a similar awareness of the problem. “I think,” he wrote an English friend, “there is a growing disbelief in the jury as an instrument for the discovery of truth.”

Although Holmes’s judicial pre-eminence rests entirely on his work as an appellate judge, he spent a great deal of time—especially in his early years on the bench—presiding over jury trials. The Massachusetts Supreme Judicial Court, unlike almost all other state courts of last resort, included in its regular jurisdiction a wide assortment of actual trial-level litigation. Thus Holmes sat with juries in homicide prosecutions, contract actions, and even divorce matters and cases involving wills (where, in his day, juries often determined the facts).

This familiarity with juries in life gave practical understanding to Holmes’s deep knowledge of the common law’s rules and principles. He recognized, for instance, that although jurors swear solemnly to decide the matters before them entirely on the evidence presented and the legal rules as the judge explains them, they regularly reach verdicts that disregard evidence, law, or both.

Today we call this phenomenon “jury nullification” and regard it as either laudable or deplorable, depending on our sympathy with the particular result. Whatever toleration we confer on the practice rests upon an understanding that it allows juries, as Holmes put it, “to let a little popular prejudice into the administration of law—in violation of their oath.”

When deciding such necessarily cloudy issues as a defendant’s intent, negligence, or even ability to control his or her actions, a jury can reflect not only the community but that community’s quality of mercy. The jury can do this because it is for all practical purposes anonymous. It materializes from the public, hears the evidence, returns a verdict, and then (except in the rarest of cases) slips back into the general run of humanity. Jurors are in fact not accountable. If they convict improperly, the judge may allow a new trial; if a new trial is not allowed, an appellate court may think the judge committed a legal error during the trial and set aside the conviction. But if the jurors, for whatever reason, or for no reason, decide to acquit, no judge or panel of judges can change the outcome.

This right of the jurors to decide absolutely as they please became a part of English law a century before the Declaration of Independence. It was put there by the man who founded one of the original thirteen colonies, William Penn. In 1670 Penn and William Mead, both members of the Society of Friends—that is, Quakers—were addressing an open-air gathering in Gracechurch Street, London, their meetinghouse having been closed by the authorities because a statute criminalized holding services anywhere but in a church of the established religion. Arrested for preaching to an unlawful assembly, Penn and Mead found themselves facing prosecution in the Court of Sessions at the Old Bailey before the Recorder of London, the Lord Mayor, several aldermen and sheriffs, and a jury. (Until well into the nineteenth century jury trials both here and in England often took place with a multijudge bench.)

Rex v. Penn and Mead hardly stands as a monument to due process. Harsh and vindictive, the Recorder and the Lord Mayor openly declared their belief in the defendants’ guilt and at one point virtually banished them from the courtroom. After the evidence ended—the defendants, in accordance with then current practice, not having been allowed to testify—the judges submitted the case to the jury with clear directions to convict.

Then as now, when rendering a verdict in a case like this, where the only issue was whether or not the defendants had committed a proscribed act, the jury was limited to three choices: guilty (of the offense alleged), not guilty of the charge but guilty of some lesser offense, or simply not guilty. The directions are explicit: “If he is guilty, you will say so. If he is not guilty, you will say so. And no more.”

The Penn-Mead jurors, however, speaking through the foreman, sought to return a different verdict: “Guilty of speaking in Gracechurch Street.” This, of course, evaded the essential question, which was simply whether the defendants had taken part in a public Quaker meeting and therefore been engaged in an unlawful assembly.

Despite verbal eructation from the bench and a repeated insistence that they reconsider the verdict, the jurors resisted, even after the judges had threatened to imprison them without food and indeed had them locked up “without any accommodation.” Finally, after two days, the jury capitulated, but only to return a straight not-guilty verdict for both defendants.