Volume XIII, Issue II
March/April 1999

The right to a trial by jury is a fundamental, inviolate right. The United States Constitution Article III, Section 2 commands that the trial of all crimes, except those in cases of impeachment, shall be by jury. In Washington, the right to jury trial in civil proceedings is protected by Article I, Section 21 of our state constitution. See Sofie v. Fibreboard Corp., 112 Wn.2d 636, 644, 771 P.2d 711, 780 P.2d 260 (1989). Article I, Section 22 of our state constitution protects a criminal defendant's right to a trial by an impartial jury.

This zealously protected right came to the United States with the English colonists, who deeply resented trials before judges dependent on the Crown for their salaries and tenure of their office. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 1449 (1968). "[W]ith excellent forecast" the colonists recognized that the truth of every accusation should be "confirmed by the unanimous suffrage of twelve ... equals and neighbors, indifferently chosen and superior to all suspicion." Duncan, 88 S. Ct. at 1449 (quoting 4 W. Blackstone, Commentaries on the Laws of England 349 (Cooley ed. 1899)).

It may well be that the Athenians, 400 years before the time of Christ, were the first to advance the idea of a jury. J. Guinther, The Jury in America at 2 (1988). Jurors, who were also known as dicasts, were chosen from males over the age of 30. Their decisions were final, the loser having the right only to bring a private suit against a witness for perjury. J. Guinther, at 2.

The courts of the Roman Empire did not ask for input from citizens. After the Western Roman Empire fell, the "barbarian tribes which sacked Rome and took over its richest domains had no use for sophisticated justice system...." J. Guinther, at 2. The law became a matter of local traditions and superstitions with the "arbitrary and brutal rule of the Coliseum more likely to be applied than that of the old courts." J. Guinther, at 2.

In England, kings reigned and crimes were settled at the village level. Powerful sheriffs executed or lynched those considered guilty without the formality of a trial.

While William the Conqueror's approach to dispute resolution was for accuser and accused to "whack at each other with axes" (the survivor was declared the innocent party), William also brought to England the King's witenagemot, an assembly of wise landowners and priests. J. Guinther at 6-7. William developed the King's Curia Regis, or royal court, which was sometimes impaneled along with the witenagemot as a grand jury or King's fact-finders. J. Guinther, at 7. Although rarely used, a protocol known as the recognition gathered together neighbors with knowledge of a dispute to voice whether they thought the facts were true. J. Guinther, at 7.

William the Conqueror used a jurare, a group of well-born citizens who informed the King, or visiting representative, of any local crimes. The jurare offered its opinion as to which claimant had the right to the property in question. Members of the jurare rarely ruled against the King. J. Guinther, at 7. Not until King Henry II (1133-89) did the jury system become an integral part of the English justice system. Gradually, the role of the jury came to be that of recipients of testimony under oath.

When the English colonists settled Plymouth colony in the New World, the right to a jury trial in criminal cases had already been in existence for several centuries. Duncan, 88 S. Ct. at 1448. The colonists brought the right with them and cherished it as "one of their dearest privileges." J. Proffatt, Trial by Jury, Section 115 (1880). The colonists deeply resented royal interference with the right to a jury trial and declared the right to trial by jury an "inherent and invaluable right of every British subject in these colonies." Duncan, 88 S. Ct. at 1449 (citing the October 19, 1765 resolutions adopted by the First Congress of the American Colonies). Jury trials were necessary to preserve the "admirable balance of the constitution" because the King's power could be dangerous and destructive if exerted without check or control. Duncan, 88 S. Ct. at 1448.

The constitutions adopted by the original states guaranteed jury trials. The constitutions of all states entering the Union thereafter protected the right to jury trial in criminal cases.

In the late 1800's, those who served as jurors in the United States had to be possessed of property for it was believed that only those persons would protect the community. J. Proffatt, Section 115. "Reputable male householders" were qualified jurors. J. Proffatt, Section 115.

Potential jurors also had to possess the proper necessary character--only honest, upright and judicious men were competent to discharge the duties of a juror. The State of Delaware selected only "sober and judicious persons." J. Proffatt, Section 123. Persons were required to be well-informed, intelligent, and able to read and write the English language. Those serving on a jury had to be free of "seeing, feeling, hearing, or mental defect." Only those between the ages of 21 and 60 were called to serve. J. Proffatt, Section 118.

Selection of qualified jurors was generally made yearly by officers of the court at town meetings after determining how many jurors were needed for the ensuing years. In some states, including Massachusetts and New York, juror selection was made every three years. In Maine, municipal officers, the treasurer and clerk of the town, prepared lists every three years. The townspeople could strike a name, but could not insert one J. Proffatt, Section 121.

Before the turn of the century, jurors could be challenged if they did not possess the statutory qualifications, and if they were related to either party within the ninth degree. Affinity ceased with death. In civil matters, the relation of a juror to either party's counsel was not a ground for disqualification. If a juror had eaten or drunk at the expense of one of the parties since being summoned as juror, he could be challenged. A juror who had talked with a witness could not be challenged as long as he still had not formed an opinion on a prisoner's guilt or innocence. A comment by a juror that a defendant should have been hanged 20 years ago, without reference to any particular case, was not considered a ground for disqualification.

The right we know today as trial-by-jury developed over the course of centuries, gradually and progressively altered by time and those who ruled.

Certainly, juries have, on occasion, mistakenly convicted an innocent defendant accused of a crime or erred in awarding litigants too much or too little money. The jury is, however, appropriately described as the conscience of the community -- bringing together people's values of right and wrong upon the proscriptions of the law. J. Guinther, at xiii. This venerable right is part of our democratic history, and is one that should be preserved inviolate.

Judge Sweeney is a judge on the Court of Appeals, Division III.

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