Changing Role of the Jury

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Trial by Jury does not owe its existence to any positive law: - it is not the creature of an Act of Parliament establishing the form and defining the functions of the new tribunal.

It arose... silently and gradually, out of the usages of a state of society which has forever passed away, but of which it is necessary to have a clear idea in order to understand how this mode of trial first came into existence."

"I do not think it is possible to determine the exact period when the change took place, whereby a person accused of a crime by the inquest of the hundred was entitled to have the fact tried by another and different jurata. Most probably there was no sudden alteration in the system, but in proportion as compurgation and the ordeal fell into disrepute, the necessity would be felt of substituting some other mode of determining whether the accusation of the jurors representing the patria was well founded or not."

William Forsyth,
The Self Informing Jury

In the 12th and 13th centuries the common law was rooted in the self-informing jury.

Jurors came to court more to speak that to listen. They were the source of information and knew if there was evidence to support a case. Judges knew little about the facts so were not in a position to prevent jurors from deciding culpability, that is, the law.

The 14th and 15th centuries saw incremental but drastic changes to the jury system as jurors came to court increasingly ignorant of events. They ceased to be the main source of information but relied on evidence presented at court.
Thus the jury gradually became uninformed.
The Black Death

key factor behind this change was the Black Death (1348-49). This had a devastating impact on the population with contemporary studies suggesting 40-60% of the population died.

The Black Death undermined the communal basis upon which the system of self informing juries had been built.

Less productive lands were left uncultivated, open field plots became single owner enclosures and labour shortages led to rising wages.

The once stable and interdependent farming communities organised around tithings were replaced with an increasingly mobile workforce. The Frankpledge system of surety collapsed.
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Impact Upon the System of Justice

The Black Death also led to significant changes in the judicial system.

The policing functions of Frankpledge were increasingly replaced by
constables. Constables were citizen peace officers elected for 1 to 2 year terms at village or borough level and they often descended from Tithingsmen. Centuries later there are reports that constables in London were chosen by lot.

Assize Courts
replaced the irregular Eyre Courts. Counties were grouped into assize circuits. A pair of royal justices visited each assize regularly twice a year to hear serious crimes and civil cases delegated from the central Westminster Court of Common Pleas.

Local law enforcement increasingly relied on
Justices of the Peace (JPs). They were usually local landowners designated to serve by royal commission. The position was part time, unpaid and they received no legal training. JPs sat collectively four times a year as the Court of Quarter Sessions together with a grand jury and sometimes with lesser juries of presentment. They dealt with minor offences and new regulatory law and displaced the local county and hundred courts.

Changing meaning of an ASSIZE

  1. Solemn session of a council or court
  2. An enactment made at a council or court meeting
  3. Inquisition of 12 men. The most important meetings were to establish trial by inquisition.
  4. Procedures leading up to a trial by inquisition.
  5. Assize Court - courts held throughout the country twice a year overseen by travelling justices.

Impact Upon the Grand Jury

ith the undermining of local communities and the decline of juries as the main source of information jury trials were adapted.

In criminal procedure the practice developed whereby the Sheriff would impanel a single jury composed of jurors from different parts of the County.

The number of jurors fluctuated until the early 1400s under Edward III when Sheriffs were directed to summon twenty-four persons with twenty-three of them ultimately selected.
They formed the "Grand Inquest" or Grand Jury.

As grand jurors were less likely to come from the immediate vicinity of a crime so the Sheriff had to find other sources of information.

Victims of crime or their family and friends could be impanelled on the Grand Jury or alternatively grand jurors could bring forward complaints on behalf of friends and neighbours.

Local officials - coroners, bailiffs, constables - sometimes made up the whole grand jury.

As the Grand Jury became dependant on evidence provided by complainants and witnesses so they came to sit in closed hearings.
From Presentments to Indictments

Once the Grand Jury was selected from the county so it started to move away from
presentments based on its own knowledge to indictments based on complaints and information provided by victims or citizen law enforcement officers.

The change from presentment to indictment was also influenced by the growing use of a
Bill of Indictment. This was a written accusation brought to the attention of any justice who then handed it to the relevant jury for consideration.

With time legislation and judicial practice came to require increasing detail and precision in drafting indictments, including oral presentations, and professional county clerks often took over this work.

By the end of the Middle Ages the Grand Jury had largely ceased to serve in its original Clarendon role in initiating charges and was coming instead to serve as a reviewing body for externally generated Bills of Indictment, especially for serious crimes.

Grand juries did continue to initiate presentments at Assizes and Quarter Sessions mostly regarding regulatory matters, for example road and bridge repairs and cases of anti-social behaviour. Such county level administration continued in the form of presentments into the 18th and early 19th century.

Originating from accusatory/presentment juries the primary role of the Grand Jury evolved into deciding indictments. At the same time it never lost it's right to initiate presentments.
The Separation of The Grand Jury and Petit Jury

As juries replaced trial by ordeal there was growing unease about the fairness of having those responsible for accusing someone of a crime also serving as triers of the case.

Protests against this practice were raised in Parliament in 1341 and 1345.

In 1352 a Statute was issued which allowed a juror on a trial jury to be challenged on the grounds that he had been a member of the accusation or presentment jury thus leading to the separation of the grand and petit juries.

In 1368
'Le Grand Inquest' or accusatory jury was increased in number from 12 to 23, with a majority vote necessary to indict anyone accused of crime.
Secrecy of the Jury

Even at the height of the self informing character of the jury there were occasions when the jurors' knowledge was supplemented by others. Over time these practices grew in importance as jurors ceased to rely on their own knowledge and external information provided by witnesses came to prevail.

In what he describes as "
one of the greatest mysteries of English legal history" John Langbein points out that instead of coming to trial with their own knowledge of events by the end of the 16th century trial jurors were expected to be ignorant of the crime being tried.

Once the separate trial jury decided the truth of a matter there was no need for justices to question the presentment jury. As a result the Grand Jury changed from a mere instrument of the Crown to an independent power standing between the Crown and the Pope in defence of the liberty of the citizen. Grand juries were not required to reveal their evidence to Court. They met in secret and as part of their oath they were sworn to keep proceedings secret.
Independence of the Jury

Against this background indictment by grand jury and trial by jury became well established legal practice in the Middle Ages. Jury practices and customs, which existed and evolved long before both writs and the legal profession itself, continued to assume ultimate power over both the ‘facts’ of the law and the law itself. That is to say juries exercised ultimate power over both the question of whether the accused had actually broken the law and also whether application of such law in each particular case was properly justified.

Juries would often deliver not guilty verdicts because they believed the punishment due for certain offences was excessive and unjust. Such ‘jury nullification’ was, according to Thomas Green, fairly common.

At the opposite extreme, higher authorities, including barons and monarchs - most especially Richard II and Henry VIII - were fairly arbitrary and over mighty in their manner of upholding the law.

The rebellion of Simon De Montfort in the mid 13th century resulted in the principle of accountability to the ‘community of the realm’ being extended from monarchs to also include barons. It has been estimated that Magna Carta was reaffirmed over 50 times in the two centuries which followed King John. Even so such ceremonies seem to have been neglected thereafter.

The Reformation brought matters to a head in regard to the truculence of monarchy in its condescension to law.

Edmund Coke would be the great champion of Common Law in ensuring that even the head of state is not above the law.