The Jury Revisited

By McCord, David | Judicature, May/June 2005 | Go to article overview

The Jury Revisited

McCord, David, Judicature

Following is an edited transcript of a portion of the American Judicature Society Mid-Year meeting program in New Orleans March 4-5, 2005, titled "The Jury Revisited." The program consisted of four parts: The plain-English jury instruction movement (below); The new ABA Jury Trial Standards (see page 291); juries and sentencing; and juries and technology (juries and sentencing and juries and technology are not included here; unedited versions are available on request).

The "Plain-English" Jury Instruction Movement: Is 8th Grade Language Better?


Peter Tiersma, Professor, Loyola Los Angeles Law School

Hon. James Ward, Judge, California Fourth District Court of Appeal and chair of the California Judicial Council Advisory Committee on Civil Jury Instructions

Joseph Kimble, Professor, Thomas Cooley Law School

Welcome and introduction

David McCord, professor, Drake University Law School and director of the AJS National Jury Center:

Good morning. I'm very pleased to have all of you here. I'm really excited about the panelists we have for you. Literally, on every one of these topics, there could not be better panelists. We're going to begin with the panel on plain-English jury instructions.

Peter Tiersma: I'm going to give you a brief history of jury instructions and how we got to where we are today. My professional website, LANGUAGE, has information on jury instructions and California's jury instruction committees, as well as links to the most recent California plainlanguage jury instructions and a comparison of the older and newer ones.

A trial is a search for the truth, or at least a search to find out what happened. In the Middle Ages, a common way to find out what happened was ordeal by fire or by water. Ordeal by fire involved going to a church during the Mass, where the defendant would deny committing the crime. Then he would grab with both hands an iron that had been heated over a fire. Those hands would then be bound with cloth, and three days later he would reappear in church. If his wounds had gotten better, God had declared that he had told the truth; if they got worse, God had branded him a liar.

By 1215, the church decided that priests could no longer take part in the ordeal. At that point, God could no longer be viewed as speaking through the ordeal. Judges had to find a new way to determine the truth. The new method was to summon 12 people from the place where a crime occurred into court and to ask them what happened. That is the origin of the modern jury. Those people were put under oath and so they were named with the Latin term juralores, or "those who are sworn," which in French is juré; that, of course, led to the term "jury" in English.

In the beginning these juries did not receive any instructions on the law. They were expected to decide the case based upon their own knowledge of the law or what they thought was right. That continued in England for hundreds of years, which is why during much of the Middle Ages certain areas of English law were really not very well developed.

This was true in the early United States as well. In fact, the Founders thought that this was a good thing. Thomas Jefferson, for example, had great confidence in the common man and thought that it was actually the right thing for jurors to decide the case based on their own sense of justice. But during the 180Os, American society became more industrialized and complex. Moreover, people began to become bothered by the notion that one jury could decide a case one way, and another could decide it differently. There were few predictable rules of law if a jury could impose its own sense of justice. So by the end of the nineteenth century we begin to see courts taking away the right of jurors to decide what the law is.

At end of the nineteenth century the United States Supreme Court held that it is the duty of juries in criminal cases to take the law from the court, and to apply that law to the facts. …

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