The American Criminal Justice System: How It Works, How It Doesn't , and How to Fix It

By Gerhard Falk | Go to book overview

Chapter 6
THE AMERICAN JURY

THE ENGLISH ORIGIN

The American jury is the product of the English jury because the founding fathers of the Republic were English subjects before they became Americans. Therefore, Article 3 of the U.S. Constitution guarantees the right of trial by jury, but meaning “jury” in the English sense. The English jury was first established in the thirteenth century (1201–1300). Prior to that century, English law required three forms of proof before anyone could be held guilty of a crime. All three proofs were not applied together. Instead, any one of the three proofs sufficed. These proofs were “wager of law or compurgation,” the ordeal, and trial by combat.1

Compurgation is related to “purification” and refers to the medieval practice of asking the accused to swear an oath that he or she did not commit the offense charged. The accused was also obliged to produce a number of “oath helpers.” These were people who backed the accused’s denial by also swearing an oath. It was assumed that no one would risk his or her “eternal soul” by perjury and that therefore such oaths were secure.

Evidently, individuals who had been caught in the act or had confessed could not avail themselves of compurgation. Foreigners were also excluded from the use of this proof.2

Prior to the development of the grand jury, a “jury of presentment” investigated alleged crimes and reported the findings to the judges. The members of this jury of presentment were representatives of the county.3

Because compurgation fell into disuse in the twelfth century and because not everyone was entitled to use this method of proving innocence, King Henry II ordered that anyone adversely affected by a report of the jury of presentment should have to undergo the ordeal of cold water or hot irons. These ordeals appear so bizarre to Americans of the twenty-first century that it is difficult to understand how anyone could have taken such performances as evidence of guilt. It needs to be

-109-

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The American Criminal Justice System: How It Works, How It Doesn't , and How to Fix It
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Introduction vii
  • Chapter 1 - The American Police 1
  • Chapter 2 - A Brief History of Criminal Prosecution in the United States 23
  • Chapter 3 - Prosecuting Violent Crime and Sex Offenses 45
  • Chapter 4 - Prosecuting Wwhite- Collar Crime 69
  • Chapter 5 - Defending the Accused 89
  • Chapter 6 - The American Jury 109
  • Chapter 7 - Courts and Judges 129
  • Chapter 8 - The Prison-Industrial Complex 151
  • Chapter 9 - Probation and Parole 173
  • Chapter 10 - The Death Penalty- Non Omnis Moriar 193
  • Epilogue 215
  • Bibliography 221
  • Index 241
  • About the Author 251
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