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10 A.B.A. J. 53 (1924)
Trial by Jury an Ineffective Survival

handle is hein.journals/abaj10 and id is 59 raw text is: TRIAL BY JURY: AN INEFFECTIVE SURVIVAL We Have Clung With Pathetic Earnestness to Unrecognizable Remnants of a System Which Ts Today Marked By Inadequacy and In 2fficiency as a Means of Ascertaining Facts and Affords Frail Security to Natural and Acquired Rights By BRUCE G. SEBILLE Of the Brawley, California, Bar HOSE who have had occasion to observe the methods employed in the administration of judicial principles, have necessarily been con- fronted with a realization of the inadequacy and inefficiency of the judicial trial by jury. Its defects are so patent as to compel the attention of even the casual observer, and to one compelled to cope with it as an essential factor in his personal con- cerns, it assumes the characteristics of the fabled dragons of mythology, frustrating the objects of commendable endeavor and reducing to wretched- ness the victims it cannot destroy. The jury, established in answer to the peculiar needs of the age that produced it, exists today without a vestige of reason, the altered conditions occasioned by man's progress having made it ineffectual and inex- pedient as an agency of legal administration. It is not my intent to minimize either the, efforts or the objects of those who so ardently contended for the right to the trial by the peers of one involved in litigation. The social organiza- tion of the English polity early in the 13th century, composed as it was of a dominant and a subservi- ent element, necessitated the establishment of safe- guards to the rights of the dependent majority that was forced to the extremity of an absolute reliance upon the caprice of feudal lords for the determina- tion of its legal controversies. And no more valu- able concession has ever been vouchsafed a liberty loving people than was the right granted by the recognition of the Magna Charta of having the rela- tive merits of opposing interests authoritatively de- termined by a judicial body composed of members whose interests were identical with those before them for consideration. Agrarians through economic necessity the English villeins and serfs were en- gaged solely by the problems attendant upon agri- cultural pursuits, and not as yet confronted with the issues presented by a complex civilization were permitted to devote their unified energies to the subjugation of.the regnant feudal power, the ex- cessive domination of which threatened to stifle their existence. Realizing that the ignorance of judicial trib- unals would prove as disastrous to their interests as their open hostility and antagonism had been, the original protagonists of the jury provided that its members be selected from a narrovly circum- scribed vicinage and required of them as a pre- requisite to their officiating an acquaintance not only with the parties litigant, but with the facts germane to the issue as well. We have clung with pathetic earnestness to the unrecognizable remnants of that original system, and we engage in mimicry by selecting the members of our modern juries from political subdivisions hundreds of square miles in area and peopled by thousands of inhabitants. We permit changes of venue that frequently operate to re- move a cause from its original jurisdiction to a remote section of the state to be tried before a body of jurors selected from that same remote section. We have evolved a comprehensive legal procedure that not only permits but encourages the exclusion from a mode;9 jury of one possessing the slightest knowledge of the facts he is supposedly sum- moned to determine. Abysmal ignorance consti- tutes a condition precedent in the qualification of jurors, and that ignorance must be established to the satisfaction of contending counsel, else the prospective juror is summarily dismissed from the body to which he would, if permitted, have brought enlightenment. The one redeeming virtue that avails to the slightest degree in mitigating the crime of hypocrisy of which our legal procedure has convicted us, is the possession of finer sensibilities that prompt us to ad- mire the worthiness of principles we have so violently mutilated. . The province of the jury, indeed its sole prov- ince, is the discernment of fact. It is true that the existence of a fact does not depend upon the knowledge of its existence by those whom it affects. The principles of gravitation have been operating since the creation of bodies, yet they were unknown to man until their comparatively recent discovery by Newton. A judicial trial is unique in this, that no fact can exert an effect that does not come within the knowledge of the tribunal engaged in the trial. A fundamental principle of legal science is the absolute disregard of a fact not proved. The ascertainment of fact is the most impor- tant as well as the most difficult task imposed upon man by reason of his existence, and in judi- cial trials the true discernment of fact is an abso- lute essential to the administration of justice. The difficulties attendant upon the search after truth are legion, even when no human agencies inter- pose obstructions in the path of him who searches, and when all the means accessible to man in the acquiring of knowledge are at his free disposal. To one engaged in such a task, -nature lends the assistance of the senses, of the instincts and of the 'intellect. The jury is aided by none of these agencies. Enclosed by the walls of the court room, it is called upon to decide the existence of facts of which neither the senses; the instincts nor the intellect of its members have apprised them. En- tirely inexperienced and untrained they are op- posed in their hampered investigation of fact not only by the absence of natural agencies, but by the designing and effective machinations of expdrienced counsel and the deliberate deceptions of violently interested partisans. The evidence that would give light to the juror in his blind quest is carefully concealed by one party and the other as strenu-

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