by Victor S. Yarros
originally published in Liberty, 1 June 1895

It is impossible to blame those who clamor for the radical reform of the present system of trial by jury, even though the changes suggested by them may not be in the line of progress at all. Trial by jury, as we know it, is a farce and a mockery.

Weeks are spent in selecting men to serve; the intelligent and fit members of the community are carefully barred out; and of the ignorant only those of whose unfitness there can be no reasonable doubt are, under the law, preferred by judges and lawyers.

In New York a police officer has recently been tried on charges of extortion. The evidence, arguments, judge’s charge, and everything else consumed but two days; the jury’s deliberations, which ended in a disagreement, lasted about twenty-four hours; while the work of selecting this jury required over three weeks. The cause of this odd disparity was the assumed necessity of keeping out men who new anything about the Lexow police revelations and who had any positive opinions about the character of the force and the standing of its individual members.

In view of the sensational character of the Lexow revelations, it is safe to say that the man who asserts that his mind is a perfect blank on the subject is either a fool or a liar, and hence it is from the ranks of the fools and liars that the jury had to be drawn.

The defence in the case in question was entirely willing to have such a jury, since the chances of conviction with it are exceedingly slight; but the prosecutor, realizing the abstruse character of the legal elements of extortion, insisted on exercising special care and selecting an exceptionally intelligent jury.

Observe, then, their dilemma: on the one hand, reading and reflecting men, almost without exception, have “opinions” about the New York police force which render them unfit for jury service. Considering that during the Lexow sessions, which were spread over a long period, the newspapers were full of reports and editorial moralizing concerning the venality and hopeless corruption of the entire police force, and that the town had no more absorbing topic of discussion, the failure to form an opinion just be deemed a sure mark of imbecility.

As a matter of fact, all rational men did form opinions, and there has been nothing in subsequent events to lead them to change their opinions. All rational men believe that, in the case of the superior grades of officers at least, it is fair to hold every man guilty until proven innocent.

This, of course, “won’t do” for a trial according to legal evidence, and hence all rational men had to be excluded. On the other hand, the prosecution knew that ignoramuses could never be made to understand the technical definitions of the legal elements of extortion, or the significance of the distinctions that were certain to arise on the arguments.

Under the circumstances the wonder is that three weeks was all that was needed for the selection of a jury able to define “probative force and “burden of proof,” but destitute of any opinions regarding the moral standing of the police.

In spite of the extraordinary efforts, the result was a mistrial. Loud demands are now made for jury reform, and, as usual, the propositions are that a majority should be empowered to render a verdict and that the “better classes of citizens” should be induced or compelled to serve. Both propositions are essentially reactionary. A trial by the “better citizens” would not be a trial by the country, and a majority verdict would not be a verdict by the country.

Only one sensible suggestion has been made,—that the examination of jurors with respect to their opinions should be entirely done away with. It is an insult to assume that a disinterested man cannot, regardless of an “opinion” formed from general reports and hearsay, arrive at a verdict on the legal evidence presented in court. In a newspaper age all intelligent men form opinions on such information as becomes public property, but few are ready to send a man to prison on the strength of such opinions.

It is needless to say that no one has suggested the reform of making the jury judges of law as well as of fact. Indeed, in view of the widespread dissatisfaction with jury trial, the suggestion must seem paradoxical. But, in reality, such a reform would, even under present conditions, prove highly beneficial. It would simplify the proceedings and check legal juggling. It would diminish injustice and introduce common sense, which is all but banished from common-law jurisprudence.

I regret to see that the Baltimore “Sun,” which doesn’t know a good thing when it has it, deplores the fact that in Maryland the jury are still judges of law as well as of fact. It is safe to say that, if this system works unsatisfactorily in Delaware, the fault lies elsewhere. Let the “Sun” inquire into the methods of selection and drawing of names.

In all the States of the Union where original trial by jury exists, it will be found that the safeguards which are necessary to secure a truly representative jury have been neglected or deliberately rejected. It is obvious that, the greater the power of the jury is, the more important the preliminary steps become.

It is unfortunate that most of those who discuss jury reform know nothing regarding the true philosophy of the institution, and it is to be feared that the outcome of the present agitation will be the abolition of unanimity in jury verdicts. Utah, in her newly-framed constitution, has already provided for a majority verdict.

V.Y.

Notes from the Fully Informed Jury Association
This article has been reformatted to enhance readability with additional paragraph breaks not present in the original.

Additionally, here are a few notes to help put this article in historic context:
1. This article was published just months after the Supreme Court of the United States ruled in Sparf and Hansen v. United States on 21 January 1895. Sparf has frequently been wrongly interpreted to have removed the right of jury nullification—in fact, it did no such thing. Roger I. Roots, J.D., Ph.D. discusses at length the significance of Sparf, including what the ruling did and did not do, in his paper entitled The Rise and Fall of the American Jury.

2. The “Lexow revelations” language herein refers to the results of the investigation of the New York Police Department conducted by the Lexow Committee, named for its chairman, State Senator Clarence Lexow. The Lexow Committee inquiry delved into such scandalous matters as extortion and bribery, voter intimidation and election fraud, brutality, and so on.

3. Victor S. Yarros, the author of this article, was clearly aware of the work of the most notable jury nullification advocate in United States history and one of the most important in world history—Lysander Spooner. We know this for at least two reasons.

First and most obvious is that he edited, and in 1912 he published, a revised edition of Lysander Spooner’s classic work Trial by Jury under the title Free Political Institutions: Their Nature, Essence, and Maintenance: An Abridgment and Rearrangement of Lysander Spooner’s “Trial by Jury”.

But Yarros also invokes Spooner’s Trial by Jury in his language in this article. Note his use of the phrase “by the country”. This echoes Spooner’s explanation in Chapter 1, Section 1 of Trial by Jury that:

“The trial by jury,” then, is a “trial by the country” – that is, by the people – as distinguished from a trial by the government.”

It was anciently called “trial per pais” – that is, “trial by the country.” And now, in every criminal trial, the jury are told that the accused “has, for trial, put himself upon the country; which country you (the jury) are.”

The object of this trial “by the country,” or by the people, in preference to a trial by the government, is to guard against every species of oppression by the government. In order to effect this end, it is indispensable that the people, or “the country,” judge and determine their own liberties against the government; instead of the government’s judging of and determining its own powers over the people. How is it possible that juries can do anything to protect the liberties of the people against the government, if they are not allowed to determine what those liberties are?

4. For more than a decade, Yarros was a law partner of famed attorney Clarence Darrow, who was also noted for his courtroom advocacy of jury nullification. In 1950, Yarros published a biography of Darrow entitled My 11 Years with Clarence Darrow. In that biography, Yarros alluded to Darrow’s use of jury nullification arguments in court, writing of Darrow that, “The judges seldom checked him, even when he departed from the law or told the jury that it was iniquitous or obsolete.”

5. Yarros’ comments about Maryland refer to Article 23 of the Declaration of Rights in the Constitution of Maryland, which states in part, “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.”

Notes researched and written by Kirsten C. Tynan.